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Complaint for Injunctive Relief; Case No.: Page: 1 Case 3:18-Cv-00535 Document 1 Filed 01/25/18 Page 2 of 41 Case 3:18-cv-00535 Document 1 Filed 01/25/18 Page 1 of 41 1 Jennifer A. Reisch (CA Bar No. 223671) Equal Rights Advocates 2 1170 Market Street, Suite 700 San Francisco, CA 94102 3 Ph: (415) 896-0672 4 Fax: (415) 231-0011 Emails: [email protected] 5 Javier M. Guzman* 6 Skye L. Perryman* Robin Thurston* 7 Karianne Jones* 8 Democracy Forward Foundation 1333 H St. NW 9 Washington, DC 20005 Ph: (202) 448-9090 10 Fax: (202) 701-1775 11 Emails: [email protected], [email protected], [email protected], [email protected] 12 Leecia Welch (CA Bar No. 208741) 13 Alice Y. Abrokwa* National Center for Youth Law 14 405 14th Street, 15th Floor 15 Oakland, CA 94612, and 1313 L Street, NW, Suite 130 16 Washington, DC 20005 Ph: (510) 835-8098 17 Fax: (510) 835-8099 Emails: [email protected], [email protected] 18 19 Emily Martin* Neena Chaudhry* 20 Sunu Chandy* Alexandra Brodsky* 21 National Women’s Law Center 11 Dupont Circle, NW, Suite 800 22 Washington, DC 20036 23 Ph: (202) 588-5180 Fax: (202) 588-5185 24 Emails: [email protected], [email protected], [email protected], [email protected], [email protected] 25 *pro hac vice motions forthcoming 26 27 Counsel for Plaintiffs 28 Complaint for Injunctive Relief; Case No.: Page: 1 Case 3:18-cv-00535 Document 1 Filed 01/25/18 Page 2 of 41 1 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA 2 SAN FRANCISCO DIVISION 3 SURVJUSTICE, INC., ) ) 4 1015 15th Street NW, Suite 632 Washington, DC 20005, ) ) 5 ) EQUAL RIGHTS ADVOCATES ) 6 1170 Market Street, Suite 700 ) San Francisco, CA 94102, ) 7 ) ) 8 VICTIM RIGHTS LAW CENTER 520 SW Yamhill Street ) Portland, OR 97204, ) Case Number: 9 ) ) 10 Plaintiffs, ) ) 11 v. ) COMPLAINT FOR INJUNCTIVE RELIEF ) 12 ELISABETH D. DEVOS, in her official ) DEMAND FOR JURY TRIAL ) 13 capacity as Secretary of Education, ) 400 Maryland Avenue SW ) 14 Washington, DC 20202, ) ) 15 CANDICE JACKSON, in her official ) ) 16 capacity as Acting Assistant Secretary for Civil Rights, ) ) 17 400 Maryland Avenue SW ) Washington, DC 20202, ) 18 ) U.S. DEPARTMENT OF EDUCATION, ) 19 400 Maryland Avenue SW ) ) 20 Washington, DC 20202, ) ) 21 Defendants. ) ) 22 23 1. Plaintiffs SurvJustice, Inc., Equal Rights Advocates, and Victim Rights Law Center bring 24 this action against Defendants U.S. Department of Education (“the Department” or “the 25 agency”), Secretary Elisabeth DeVos, and Acting Assistant Secretary for Civil Rights Candice 26 Jackson seeking vacatur of the Department’s new policy, as expressed in a Dear Colleague Letter 27 28 Complaint for Injunctive Relief; Case No.: Page: 2 Case 3:18-cv-00535 Document 1 Filed 01/25/18 Page 3 of 41 1 and Question and Answers guidance issued on September 22, 2017 (hereinafter jointly referred 2 to as the “2017 Title IX policy”), concerning Title IX of the Education Amendments of 1972 3 (“Title IX”). 4 2. Over 45 years ago, Congress enacted Title IX to prohibit discrimination on the basis of 5 sex in educational programs and activities receiving federal financial assistance (hereinafter 6 “recipients” or “educational institutions”). This landmark civil rights law has helped fight sex 7 8 discrimination and promote equal educational access and opportunities for girls and women from 9 the classroom to the playing field. 10 3. Twenty years ago, acting on the basis of Supreme Court decisions and the recognition 11 that Title IX’s promise of equality is hollow if a student can be subjected to sexual harassment 12 with impunity, the Department issued its first guidance to educational institutions (both K-12 13 schools and institutions of higher education) on the standards that govern their response to sexual 14 15 harassment, a form of sex discrimination. Since then, through several successive guidance 16 materials issued under Administrations led by both political parties, the Department has 17 reaffirmed that Title IX’s prohibition on sex discrimination requires recipients to prevent and 18 redress sex and gender-based harassment. These policies recognize that students who experience 19 sexual harassment, including in its most extreme form, sexual violence, suffer not only 20 physically and emotionally, but also in their ability to participate in and benefit from educational 21 opportunities, on the basis of their sex. 22 23 4. The reaffirmation of Title IX’s protections continued until September 2017, when the 24 Department formally rescinded sexual violence guidance documents issued in 2011 and 2014— 25 purportedly because they were issued without notice and comment—and issued new conflicting 26 27 28 Complaint for Injunctive Relief; Case No.: Page: 3 Case 3:18-cv-00535 Document 1 Filed 01/25/18 Page 4 of 41 1 policy documents to educational institutions—without notice and comment.1 The 2017 Title IX 2 policy is substantively unlawful and procedurally deficient. It conflicts with existing Title IX 3 requirements and fails to provide a reasoned justification for its reversal in position. It is also 4 based on a legally and factually mistaken view that earlier guidance limited due process 5 protections for students. And in issuing the 2017 Title IX policy, the Department failed to take 6 into account reliance interests that students, and organizations like Plaintiffs that work with 7 8 students, have in the protections set out in prior guidance documents. 9 5. The 2017 Title IX policy imposes significant changes on educational institutions and on 10 students. For example, whereas before, educational institutions were permitted to offer interim 11 measures, such as a revised class schedule or new housing assignment, to a student who had 12 complained of sexual harassment, now they are prohibited from issuing interim measures in a 13 manner that minimizes the burden those students. The 2017 Title IX policy also relaxes 14 15 protections for sexual harassment victims, such as by permitting mediation between the parties, 16 even in cases of alleged sexual assault. 17 6. Underlying these changes and reversals are unfounded generalizations about women and 18 girls, particularly their credibility regarding reported experiences of sexual harassment, including 19 sexual violence. Myriad statements and actions by the Department’s leadership reveal this 20 discriminatory viewpoint. Thus, not only does the Department’s 2017 Title IX policy fail to meet 21 the reasoned decision and other requirements of the Administrative Procedure Act, it also 22 23 24 25 1 See U.S. Dep’t of Educ., Ltr. from Ass’t Sec’y Candice Jackson (Sept. 22, 2017), 26 https://www2.ed.gov/about/offices/list/ocr/letters/colleague-title-ix-201709.pdf (“2017 Dear Colleague Letter”); U.S. Dep’t of Educ., Q&A on Campus Sexual Misconduct (Sept. 22, 2017), 27 https://www2.ed.gov/about/offices/list/ocr/docs/qa-title-ix-201709.pdf (“2017 Q&A”). 28 Complaint for Injunctive Relief; Case No.: Page: 4 Case 3:18-cv-00535 Document 1 Filed 01/25/18 Page 5 of 41 1 violates the Fifth Amendment’s equal protection guarantee. Plaintiffs therefore respectfully 2 request that the 2017 Title IX policy be vacated. 3 Jurisdiction and Venue 4 7. This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331. 5 8. Venue is proper under 28 U.S.C. § 1391(e) because Equal Rights Advocates, a plaintiff, 6 resides in San Francisco, California. 7 8 Intradistrict Assignment 9 9. Filing is proper in this Judicial District because Equal Rights Advocates, a plaintiff, is 10 located in San Francisco, California. 11 Parties 12 10. Plaintiff SurvJustice, Inc., (“SurvJustice”) is a national not-for-profit organization based 13 in Washington, D.C., founded in 2014. SurvJustice’s mission is to increase the prospect of 14 justice for survivors of sexual violence. It pursues this goal through legal assistance, policy 15 16 advocacy, and institutional training. Through its efforts, SurvJustice aims to decrease the 17 prevalence of sexual violence throughout the country. 18 11. SurvJustice provides legal assistance to survivors of sexual violence in campus 19 proceedings, as well as civil and criminal legal systems. The majority of requests for legal 20 assistance that SurvJustice receives are from students at institutions of higher education. 21 SurvJustice staff help sexual violence survivors navigate the campus grievance process, 22 including reporting the violence, assisting survivors throughout any investigation, advising 23 24 survivors in campus hearings, helping survivors with any appeals, and helping survivors access 25 accommodations and services from their educational institutions. They frequently serve as 26 “advisors of choice” for college students in institutional disciplinary actions for cases of alleged 27 domestic violence, dating violence, sexual assault or stalking, as provided for by the Clery Act as 28 Complaint for Injunctive Relief; Case No.: Page: 5 Case 3:18-cv-00535 Document 1 Filed 01/25/18 Page 6 of 41 1 amended by the 2013 Violence Against Women Reauthorization Act, 29 U.S.C. § 2 1092(f)(8)(B)(iv)(II) (“Clery Act”). SurvJustice staff also represent survivors in civil litigation or 3 refer survivors to other qualified lawyers for such representation. SurvJustice also assists 4 survivors in reporting crimes to law enforcement, in advocating for prosecution, and by serving 5 as media representatives for victims and their families in high-profile criminal cases. 6 12. SurvJustice also trains educational institutions to prevent and address sexual violence 7 8 through compliance with federal law, enforcement of victims’ rights, and adoption of best 9 practices that include development of a culture that supports survivors and encourages “sexual 10 respect” (i.e., respect in sexual interactions and relationships). As part of this work, SurvJustice 11 has provided the annual training required by the Clery Act, to various campus officials across the 12 country who investigate and adjudicate complaints of sexual assault, dating violence, domestic 13 violence, and stalking.
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